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USDC: BANKRUPTCY - appeal untimely even considering motion for reconsideration

Coleen Powers,
Civ. No. 07-2805 (RHK)
Mesaba Aviation, Inc., d/b/a Mesaba
Coleen L. Powers, Appellant pro se, Memphis, Tennessee.
Michael L. Meyer, Will R. Tansey, Ravich, Meyer, Kirkman, McGrath & Nauman,
Minneapolis, Minnesota, for Appellee.
Coleen Powers, proceeding pro se, appeals two Orders of the Bankruptcy Court in
the Chapter 11 bankruptcy case of Mesaba Aviation, Inc. (Mesaba). Mesaba now moves
to dismiss the appeal as untimely. For the reasons set forth below, the Court will grant
Mesabas Motion.
On March 28, 2007, the Bankruptcy Court entered an Order disallowing Powerss
claim against Mesaba in its Chapter 11 case. Powers filed a Motion for Reconsideration of
that Order on April 17, 2007, which the Bankruptcy Court denied by Order dated May 1,
1 In the Eighth Circuit, a party appealing a bankruptcy courts order may elect to have that
appeal heard by the district court or by the Eighth Circuit Bankruptcy Appellate Panel. See 28 U.S.C.
158(c)(1)(A). Powers has elected to have her appeal heard by this Court.
2 The ten-day period prescribed by Rule 8002 begins on the day after the order is entered on
the docket and includes intermediate weekends and legal holidays. See Fed. R. Bankr. P. 9006(a)
(excluding weekends and holidays only if the prescribed time period is less than 8 days).
2007. On May 14, 2007, Powers filed a Notice of Appeal of both Orders.1 On June 15,
2007, Mesaba filed the instant Motion to Dismiss the appeal as untimely.
I. The appeal from the March 28, 2007 Order was untimely.
An appeal from a bankruptcy courts order must be filed in the time provided by
Federal Rule of Bankruptcy Procedure 8002. 28 U.S.C. 158(c)(2). Under Rule 8002(a),
a notice of appeal must be filed within 10 days of the date of the entry of the judgment,
order, or decree appealed from.2 This requirement is both mandatory and jurisdictional,
Guy v. Danzig (In re Danzig), 233 B.R. 85, 91 (B.A.P. 8th Cir. 1990), such that a failure to
timely file a notice of appeal deprives the district court of jurisdiction to review that
[appealed-from] order. Veltman v. Whetzal, 93 F.3d 517, 520 (8th Cir. 1996).
Here, Mesaba argues that the Court lacks jurisdiction over Powerss appeal because
she did not file her Notice of Appeal within ten days of either Bankruptcy Court Order.
There is no dispute that, with respect to both Orders, Powers filed her Notice of Appeal
beyond Rule 8002(a)s ten-day deadline. Rule 8002(b), however, provides an exception: if
the appellant makes an appropriate timely motion before the bankruptcy court, then the
time to appeal runs from the entry of the order disposing of the last such motion
3 Of course, Powers filed her Notice of Appeal on May 14, 2007, which was more than ten
days after May 1, 2007. Powers argues, however, that she was entitled to an additional three days to
appeal under Federal Rule of Bankruptcy Procedure 9006(f). As discussed in more detail below,
Powers is mistaken.
outstanding. Id. Rule 8002(b) lists several types of motions that will suffice to toll the
appeal deadline, including motions to alter or amend judgment (under Rule 9023) and
motions for relief from judgment (under Rule 9024).
Relying on Rule 8002(b), Powers argues that the 10-day period to appeal the March
28 Order did not begin to run until May 1, 2007, the date on which the Bankruptcy Court
denied her Motion for Reconsideration. (See Mem. in Oppn at 12-13.)3 Rule 8002(b),
however, does not list a motion for reconsideration as one of the types of motions that will
toll the appeal deadline. Hence, it is not clear that Powerss Motion could have tolled the
appeal period here.
Nevertheless, some courts give appellants the benefit of the doubt and treat motions
for reconsideration as motions for relief under Rule 9023 or Rule 9024 when calculating
the appeal deadline. See, e.g., Hanson v. Sabala (In re Sabala), 334 B.R. 638, 640-41
(B.A.P. 8th Cir. 2005); Bigelow v. Stoltenberg (In re Weston), 41 F.3d 493, 495 (9th Cir.
1994). Unfortunately for Powers, a motion under either Rule 9023 or Rule 9024 also
must be filed within 10 days of the judgment or order challenged. See Fed. R. Bankr. P.
9023 (motion under Rule 9023 must be filed within 10 days of the entry of judgment);
Fed. R. Bankr. P. 8002(b)(4) (motion for relief under Rule 9024 must be filed no later
than 10 days after entry of judgment). Accordingly, a timely motion for reconsideration .
4 There is no time limit for filing a motion for reconsideration under Rule 3008. When a plaintiff
seeks to toll the appeal deadline by a motion for reconsideration, however, courts require the motion to
have been filed within 10 days of the challenged order, just as with motions under Rules 9023 and
9024. See, e.g., Dicker v. Dye (In re Edelman), 237 B.R. 146, 151 (B.A.P. 9th Cir. 1999); In re
Pulliam, 96 B.R. at 215. There is an important policy reason for such a rule: if an appellant could file a
motion for reconsideration at any time and them take a timely appeal from the order disposing of that
motion, appellants could easily circumvent the 10-day appeal deadline in Rule 8002.
5 See Fed. R. Bankr. P. 9006(a) (where last day of prescribed time period falls on weekend,
deadline is extended through end of next business day; here, last day of appeal period fell on Saturday,
April 7, 2007, so deadline to appeal ran through Monday, April 9).
. . tolls the time for the taking of an appeal until 10 days following the denial thereof. But
an untimely motion for reconsideration . . . does not toll the time for the taking of an
appeal. In re Pulliam, 96 B.R. 208, 215 (Bankr. W.D. Mo. 1986) (emphasis added).4
In light of the foregoing, Powers had to file her Motion for Reconsideration on or
before April 9, 2007 i.e., within 10 days of the March 28 Order in order for that
Motion to toll the appeal deadline.5 She did not file her Motion, however, until April 17,
2007. The house of cards upon which Powers bases her argument therefore collapses: her
Motion for Reconsideration was untimely, which means that the deadline to file her Notice
of Appeal was not tolled, which, in turn, means that her appeal is untimely because it was
not filed within the 10-day deadline prescribed by Rule 8002(a).
6 Powers argues that pre-2005 cases interpreting Rule 9006 are no longer good law because
subdivision f of that Rule purportedly was first added in 2005. (See Mem. in Oppn at 12.) The
three-day extension provided by Rule 9006(f), however, pre-dates 2005. See, e.g., In re B.J.
McAdams, 999 F.2d at 1223. Although it is true that Rule 9006 was amended in 2005, that
amendment did not alter the Rules meaning or scope; rather, it simply clarified the method of
counting the number of days to respond to service by mail. Fed. R. Bankr. P. 9006 advisory
committees note (emphasis added).
II. The appeal from the May 1, 2007 Order also was untimely.
Although a different analysis applies with respect to Powerss appeal of the
Bankruptcy Courts May 1, 2007 Order denying her Motion for Reconsideration, that
appeal also is untimely. Like the March 27 Order, Powers appealed the Order denying her
Motion for Reconsideration on May 14, 2007, which was beyond the 10-day deadline set
forth in Rule 8002(a). Powers argues that her appeal is nevertheless timely because Rule
9006(f) extended the 10-day appeal period by three days. The Court disagrees.
Under Rule 9006(f), when there is a . . . requirement to act . . . within a prescribed
period after service and that service is by mail . . ., three days are added after the prescribed
period would otherwise expire . . . . Fed. R. Bankr. P. 9006(f) (emphasis added). By Rule
9006(f)s very terms, such a three-day extension occurs only when the prescribed period
begins to run on the date of service of an order or judgment. See, e.g., Constellation Dev.
Corp. v. Dowden (In re B.J. McAdams, Inc.), 999 F.2d 1221, 1225 (8th Cir. 1993).6 The
ten-day period for filing an appeal under Rule 8002(a) is not such a period; it begins to run
on the date the judgment or order is entered on the docket, regardless of how (or when)
7 Powerss request that the Court modify its July 12, 2007 Order is DENIED.
notice thereof is served. Id. Accordingly, Powers cannot avail herself of the three-day
extension allowed by Rule 9006(f).
For these reasons, Powers did not timely appeal either of the challenged Bankruptcy
Court Orders. Accordingly, this Court lacks jurisdiction over Powerss appeal, and it must
be dismissed. See Veltman, 93 F.3d at 520-21.
Based on the foregoing, and all the files, records, and proceedings herein, IT IS
ORDERED that Mesabas Motion to Dismiss (Doc. No. 3) is GRANTED and Powerss
Dated: August 3 , 2007 s/Richard H. Kyle
United States District Judge


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